Here’s the million-dollar question you need to answer.
Pathways to permanent residence from subclass 457 or subsequent TSS visa
There is still a lot of confusion out there regarding whether subclass 457 visa holders have a pathway to permanent residence. This blog aims to explain whether or not you might be one of the lucky protected or “grandfathered” visa holders.
The good news is that if your employer has complied with its obligations as a subclass 457 sponsor, the Government was actually pretty generous when it introduced the TSS visa.
A lot of people who currently hold a subclass 457 visa or TSS visa will find that their pathway to the permanent residence has been protected or “grandfathered”.
To work out whether or not you are protected or “grandfathered”, there is one million dollar question:
Do either of these scenarios apply to you?
You held a 457 visa on 18 April 2017 AND you still hold that visa or a subsequent 457/TSS visa/bridging visa
You applied for a 457 visa on or before 18 April 2017 AND that visa was granted?
If the answer to that question is yes, then your pathway to permanent residence has been protected – you are “grandfathered”.
What does being “protected” or “grandfathered” mean?
If you are “protected” or “grandfathered”, then the following special rules apply to you:
Your occupation does not need to be on any particular occupations list (or any list); and
You must be under 50 years at time of PR application rather than 45 (unless an exemption is available); and
You must have held the 457/TSS visa for at least TWO years rather than three.
To take advantage of this protection, you must lodge your PR application by March 2022
In another bonus, if you can answer “yes” to the million dollar question above, then your ability to access this protection isn’t dependent on you:
Continuing to hold the same subclass 457 visa that allows you to access these rules. That means that if you need to apply for a new TSS visa to meet the two years working for the same employer permanent residence eligibility requirement, then that new visa will still allow you to access the special rules.
Continuing to work for the same employer. That means that if you change employer, that change doesn’t stop you accessing the special rules. It will still “re-set” the two years working for the same employer permanent residence eligibility requirement, so you will need to work for that new employer for two years before potentially being eligible to apply for permanent residence.
Having said that, if you are considering a change of employer or role, it is a good idea to get advice on how that will affect your permanent residence pathway BEFORE you change jobs.
Although the Australian Government was relatively generous, there are some things that can affect your protected or “grandfathered” status.
A relatively common example is if your new employer nominates you in a different occupation. For example, you are currently employed as a carpenter, but your new employer nominates you as a cabinet maker because you have the qualifications and/ or work experience for both roles. That new nomination as a cabinet maker will prevent you from accessing these special rules. If in doubt, get advice BEFORE changing jobs!
If you would like more information please contact us!
A lot of New Zealand citizens living in Australia aren’t exactly sure what their immigration status is here- which visa do they hold, do they have a pathway to permanent residence, are they already a permanent resident and can they apply for citizenship? Here’s a handy guide to try to help you to work your way through the minefield.
Did you arrive in Australia for the first time and make Australia your “home” on or before 26 February 2001?
Congratulations! You may be an Eligible New Zealand Citizen. This essentially means that you have the same rights as an Australian permanent resident. You may also be eligible for Australian citizenship. Contact us to find out more!
Please go to the next question.
Did you arrive in Australia for the first time and make Australia your “home” on or before 19 February 2016?
Congratulations! You may be eligible for an Australian permanent residence visa that is specifically for New Zealand citizens – the Skilled Independent Subclass 189 visa- New Zealand Stream. Please go to the next question.
you aren’t eligible for the Skilled Independent Subclass 189 visa- New Zealand Stream. However, you do have the same pathways to permanent residence as everyone else and there are some special exemptions for New Zealand citizens that may apply for certain permanent residence visa pathways. Contact us to find out more!
Have you been living in Australia for 5 years?
That’s great, please go to the next question.
you may have a pathway when you have lived in Australia for 5 years. Alternatively there may be a permanent residence pathway that is available to you now- contact is to find out more!
Have you earned at least $53,900 in four out of the last 5 tax years?
Congratulations- subject to health and character requirements, it looks like you meet the basic eligibility requirements for the Skilled Independent Subclass 189 visa- New Zealand Stream! Contact us to find out more about the visa and to double check your eligibility.
Please go to the next question.
Is the reason that you don’t meet the income requirement that:
You had to stay in Australia because of a court order from the Family Court of Australia or the Federal Circuit Court of Australia which gave you primary care of a child and placed restrictions on you removing the child from Australia; OR
You were receiving compensation for an injury and payments would cease if you returned to New Zealand; OR
You took maternity, paternity or carers leave; and
i. immediately before the period of parental or carer’s leave, you had an annual income of at least $53,900; and
ii. you now earn, or you expect to earn within a reasonable period, an annual income of at least $53,900?
An exemption to the income requirement might apply to you. You will need to provide a detailed set of documents to the Department of Home Affairs to demonstrate that the relevant exemption applies to you, but you may be eligible to apply for the Skilled Independent Subclass 189 visa- New Zealand Stream! Contact us to find out more about the visa and to discuss your eligibility.
You may be eligible to apply for the Skilled Independent Subclass 189 visa- New Zealand Stream when you do meet the income requirement. Alternatively, you do have the same pathways to permanent residence as everyone else and there are some special exemptions for New Zealand citizens that may apply for certain permanent residence visa pathways. Contact us to find out more!